Ngabirano & Another v Uganda (Criminal Appeal 388 of 2014; Criminal Appeal 416 of 2014) [2024] UGCA 229 (30 August 2024)

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT MBARARA

#### CRIMINAL APPEAL NOS.416 AND 0388 OF 2014

#### (Arising from RUK – 00-CR-CSC- No 0011 of 2011)

(Coram: Buteera, DCJ, Gashirabake and Kihika, JJA)

#### 1. NGABIRANO JOHN

# **2. AMANYIRE KERESI ....................................**

## **VERSUS**

#### **UGANDA:::::::::::::::::::::::::::::::::::**

(Appeal from the judgment of the learned trial Judge Hon. Justice Andrew K. Bashaija of the High Court of Uganda at Rukungiri delivered on the $22/01/2014$ )

#### **JUDGMENT OF THE COURT**

#### **Introduction**

The appellants were convicted of murder contrary to sections 188 and 189 of the Penal Code Act Cap 120 and sentenced to life imprisonment.

#### **Background**

The facts as ascertained from the record are as follows; On the 29<sup>th</sup> November 2011 at around 0700hours, radio announcements were made in rega-rds to the disappearance of; BNNENGERA DINNI (MOTHER) to the appellants and MUSIMENTA DOREEN (SISTER) to the appellants. Both are now deceased persons.

The 'Bataka'of Kahoko parish, Nyakagreme Sub county, Rukungiri District, gathered in the trading center and started looking for the deceased persons. Ahereza Herbert, a young son of the hrst deceased, had gone to collect maize,when he found a pit covered with banana stems and fresh soil (scene of crime) and he informed the "Bataka".

The 'Bataka'went to the scene of crime and informed police, which exhumed two bodies. These two bodies were identified as the deceased persons.

The two appellants who were sons to the 1"t deceased and brothers to the 2"d deceased, had earlier on got involved in a land wrangle with their mother. They both had attempted to murder her earlier and had been imprisoned. The 2"a appellant had asked for a panga on the fateful day from one Ninsiima Mackline in order to cut some banana stems and it was given to him. Incidentally the scene of crime was found covered by some cut banana stems.

The 2na appellant after the incident, run away from the village and hid in Rukungiri Town Council, where he was arrested from. Subsequently the appellants were charged and convicted of murder.

## Grounds ofAppeal

- 1. The learned Trial Judge erred in law and fact when he relied on weak and unreliable circumstantial evidence in convicting both Appellants thereby occasioning a miscarriage of justice - 2. The learned trial Judge erred in law and fact when he passed out a manifestly harsh and excessive sentence without due regard to the mitigating factors and the period spent on remand hence occasioning a miscarriage of Justice.

## Representation

At the hearing of the Appeal, the appellants were represented by Mr. Chan Geoffrey Masereka, on private brief. The respondent was represented by Mr. Aleto Innocent, from the office of the Director of h,rblic Prosecution.

## Ground <sup>1</sup>

## Appellants' submissions.

Counsel for the appellants made reference to Kifamunte Henry vs Uganda, Supreme Court Criminal Appeal No. 1O of L997, where it was held that the hrst appellate Court is required to re-appraise the evidence and make its inferences on issues of law and fact. He further cited Section 34(1) (c) of the Crimlnal Procedure Code Act Cap 116.

Counsel also cited Ahimbisibwe Nlan v Uganda, Criminal Appeal No. 15 of 2O13, in which their Lordships agreed that for circumstantial evidence to pass the test, it must present certainty to all reasonable doubt of the guilt of the accused person which means it must lead to the irresistible inference that the accused person committed the crime.

Counsel submitted that the aspects of circumstantia-l evidence were that Ngabirano John who testified as DWI went and reported that they had discovered a freshly covered pit where they suspected their mother and sister were buried.

Additionally, that (DW1) and Amanyire Keresi (DW2) never buried the deceased persons. It was further submitted that both appellants had been to prison over assault charges of their mother, and further still, the two appellants stayed with and near their deceased mother and sister respectively.

Counsel further submitted that the trial Judge quoted the evidence of one Ninsiima Mackline who claimed that the appellants had asked her for a panga to cut banana stems which were found covering the pit where the deceased persons were found. Counsel argued that the said Ninsiima Mackline was never called to appea-r and testify in court.

Counsel invited court to hnd that the evidence on record as to the participation of the appellants was too weak to be relied upon. Counsel further submitted that no witnesses saw the appellants kill the deceased persons, neither did any witness testify as to hearing a scuffle or seeing the appellants fight the deceased persons.

Counsel thus prayed that this ground succeeds and the conviction and sentence be set aside.

## Respondent's submission.

Counsel for the respondent challenged ground 1 relying on the case of Amisi Dhatemwa alias Waibi v Uganda, SCCA No. O23 of 1977 cited by this honourable court in Jagenda John v Uganda, CACA No. OOl of 2011, where it was held that circumstantial evidence is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving facts in issue quite accurately. Counsel submitted that it is trite law that circumstantial evidence must always be narrowly examined, only because evidence of this kind may be fabricated to cast suspicion.

Furthermore, it was submitted that Baguma Bernard (PW1) a family friend to the deceased, knew the appellants as sons/ brothers of the deceased and neighbours. And that the 2"d appellant was staying/ living with both deceased persons. Further still, it was submitted that the l"t appellant was living 7O metres away from the deceased. It was the respondent's contention that earlier on, the two appellants had a grudge over land where they were demanding land from their mother and were put in prison and later released and given land. This implies that the threats were within the proimity and time within which the deceased were murdered.

Counsel for the respondent cited the case of; trIaihi & Another V Uganda (1968) EA 27A for the proposition that evidence of prior threats is always admissible.

Counsel averred that it was the prosecution evidence that upon the death of the deceased persons and their dead bodies being exhumed, the two appellants went missing.

According to Counsel, the above pieces of circumstantial evidence when put together pointed to the guilt of the appellants. Counsel invited the honourable court to find that the learned trial Judge correctly relied on overwhelming circumstantia-l evidence to convict both appellants. He prayed that ground one of the appea-l should fail.

## Consideration of ground <sup>1</sup>

This being a first appeal, this Court has the duty to re-evaluate the evidence of the trial court in order to come to a logica,l conclusion of the matter. Rules 30(1f(a) of The Judicature (Court of Appeal Rules) Directions sets out the duty of the hrst appellate Court.

As was rightly submitted by the appellants'counsel, the Supreme Court in Kifamunte Henry Vs. Uganda Supreme Court Criminal Appeal No. 1() of 1997 held that;

> "........we @gree thrrt on a first appeal, from convlctlon bg a Judge the appellant ls entltled to haae the appellate court's outn conslderatlon and uleuts of the euldence as a uhole and. lts own declslon thereon. The first appellate courA hos a dutg to revlew the euldence of the case and to reconslder the materlql before the trlal Judge. The appellate court must then ma.ke up lts outn mlnd not

## disregarding the judgement appealed from but carefully weighing and considering it"

In this ground of appeal, the appellants fault the learned trial Judge for convicting the appellants, having relied entirely on weak circumstantial evidence.

We agree with the submissions of Counsel for the appellant that the prosecution evidence was wholly circumstantial. As this court recently observed in the case of **Akandwanaho Moses Vs Uganda**, **Criminal Appeal No. 0413 of 2021, circumstantial evidence, relies** on inference and assumptions to support a conclusion. In **Mureeba** and Others v Uganda [2006] UGSC 7 the Supreme Court of Uganda while discussing circumstantial evidence had this to say;

"Generally, in a criminal case, for circumstantial evidence to sustain a conviction, the circumstantial evidence must point irresistibly to the guilt of the appellant. In R. Vs. Kipkering Arap Koske and Another (1949) 16 EACA.135 it was stated that in order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of quilt. That statement of the law was approved by the $E$ . $A$ . Court of Appeal in Simon Musoke Vs. R. (1958) EA 715"

It must, however, be noted that just because the evidence is not direct does not mean it is less credible.

The major complaint raised by Counsel for the Appellant is that the learned trial Judge relied on weak and unreliable circumstantial evidence to convict the appellant. Given that the prosecution evidence was wholly circumstantial, it is necessary to review this evidence in order to establish whether or not the prosecution proved its case beyond reasonable doubt. The prosecution produced evidence of six witnesses in an attempt to place the appellants at the scene of crime.

Baguma Benard (PWl) a family friend to the 1", deceased testified that there was a strong suspicion which led them to think that the appellants killed their mother and sister. In his testimony, PWl, stated that the 2"d appellant stayed in the same house with the deceased persons whereas the 1"t appellant stayed in his own house about 70 metres away. It was PW1's evidence that the appellants had land wrangles with their mother from whom they were demanding land. That at one time they assaulted their mother and were imprisoned but were later released.

Turamye Morris (PW3) a brother to the appellants, testified that when he called the 1"t appellant on phone asking for the whereabouts of their motlrer and sister, the 2"a appellant responded that they had gone to Kihihi with his sister. In his testimony he stated that, their late mother gave them their shares; but that the 2"a appellant sold his and came back demanding for more but their mother refused to give him more land.

Evas Kewodi (PW4) a very close friend to the l"t deceased testified that the appellants were always beating their mother and stealing her property. That they were put in prison for assaulting her. It was still PW4's testimony that on the fateful day, she went looking for the 1"t deceased and that when she went to her home, she found the appellants there. Upon inquiring from the appellants about the where abouts of the 1", deceased, they told her that the deceased had left the previous Friday with a matooke vehicle to Kihihi with their sister. PW4 further testified that the appellants used to harass and threaten their mother with death and she further testified that the appellants had land wrangles with their mother.

Kellen T\rmusiime (PWS) the LC1 Chairperson of the area testified that the two appellants used to have land wrangles with their mother. It was still her testimony that one time the appellants beat up their deceased mother and she reported the matter to the police and both appellants were imprisoned for two years. She further testified that upon serving their sentence, they returned home and continued threatening to kill her one day. It was PW5's testimony that the 1"t deceased reported all these threats to her.

Obadia Begumisa (PW6) a resident of Kahoko parish, Nyakagreme Sub-County, Rukungiri District, testified more or less what the other prosecution witnesses had said, but further confirmed that the appellants never buried their mother and sister.

We are alive to the well-established principle that where the prosecution produces evidence of witnesses whose evidence is

substantially circumstantial, the courts, before drawing any inference of guilt from such evidence, must be sure that there are no coexisting circumstances which would weaken or destroy the inference of guilt. See **Byaruhanga Fodori v Uganda [2004] UGSC 24** where the Supreme Court held as follows:

"It is trite law that where the prosecution case depends solely on circumstantial evidence, the Court must, before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis that that of guilt. The Court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt. See S. Musoke vs R. [1958] E. A. 715; Teper vs. R. [1952] A. C. 480)."

The learned trial Judge, in reviewing the testimonies of the prosecution's witnesses, stated as follows in his judgment;

> "After carefully weighing the evidence of the prosecution" and defense together it emerges clearly that there is no *direct evidence linking both accused persons to the murder* of their mother and sister. There is, however, very strong circumstantial evidence which irresistibly points to none other than the two accused persons as responsible for killing their mother and sister.

> *In order for prosecution case to succeed on circumstantial* evidence, the evidence must be incapable of explanation upon anA other reasonable hApothesis than that of the guiltg of the accused. See. Joseph Magezl a Ugando S. C. Crlmlnal Appeal lVo. O8 of 199a; Uganda a G. W Slmbuta (Supra). (Stc)

This court warned it self and the Assessors that although uery ofien cirqtmstantial euidence is the best euidence, such euidence must be narrowlg examined because euidence of this kind may be fabicated to cast suspicion on another. Corsequentlg, before inferring the guilt of the acansed from the circumstantial euidence it is necessary to be sure that there are no co-eisting circumstances which would rueaken or destrog that inference. See: Walbt u. Uganda [1978] HcB 218 (c. A.)

The euidence of the prosecution that the two accused used to beat, h.arass and threaten their mother with death leaues no doubt that theg knew and participated in causing her death. There is euidence that they had been in pison ouer assault charges of their mother and also that one time theg chased her into her house to cut her with the panga and tuhen she closed the door, the acansed missed her narrotulg and instead ant the door.

There is euidence that tLrc acansed stayed near their deceased mother and sister, and in fact A2 staged in the same house with the mother, while 41 staged about 70 metres from her mother's house. It would be inconceiuable

that two people such as close relatiues as mother and sister would disappear to be buried at such close distance to their house without arousing the accused's suspicion if they were not inuolued.

It uould be euen more inconceiuable that when the death threats became more intense from the accused directed to their mother, it is when their mother and sister went missing and were found buried in the pit close bg. It should also be recalled that the two acqtsed asked one Ninsiima Mackline for a panga to cut banana stems and banana stems were found specificallg couering on top of the pit in the same banana plantation uthere the tuto bodies were exhumed from.

It is also in euidence that uthen the closest friend of the deceased mother, Kawodi Euas, PW4 found the two accused at lnme and asked them the whereabouts of their mother, both confirmed to her that she lnd lefi for Kihihi with a matooke uehicle together uith Doreen their sister on 18/ 11/ 2011 uhich was a week earlier, get PW4 had been with the two onlg the preuious dag. AII this euidence inesistiblg points to no other than the acansed persons. They knew about the death and theg participated in killing their mother bg hitting her on the head and breaking her skull as shoutn bg the medical examination (Exhibits P.1).

As for their sister Doreen, she died as a result of being present u.then the two were killing their mother. There is euidence that theg hated her for being sired bg a mana other than their biological father. The accused claimed she taas brought bg the mother to "eat their things. They strangled her to death as shown by Exhibit P2 (Post-mortem Report)."

Having reviewed the evidence produced by the prosecution and considered the trial Judge's decision, it is our considered view that the learned trial Judge properly evaluated the evidence, purely circumstantial as it was and rightly found the appellants to have been responsible for the unlawful death of the deceased persons. We add that we are satished that there were no other co-existing circumstances in the case before us, which weaken or destroy the inference of guilt that was arrived at by the trial Judge.

With regards to the appellants'claim that Ninsiima Mackline was never called to appear and testify, yet the trial Judge relied on her evidence, we agree that this was a misdirection by the trial Judge. This was hearsay evidence which ought not to have been taken into consideration by the trial Judge. That notwithstanding, we are satisfied that the prosecution evidence of PW1, PW3, PW4, PW5 and PW6 was strong and unassailable, even though it was circumstantial in nature. The prosecution in our view proved their case beyond any reasonable doubt. Even without the evidence of Ninsiima Mackline, there was enough evidence produced to pin the appellants.

This ground of appeal therefore fails.

# Ground 2

## Appellants' submissions

Counsel faulted the learned trial Judge for failing to take into consideration the mitigating factors. It was counsel's submission that a trial court while exercising its discretion, ought to consider mitigation and other pre- sentencing requirements as elucidated in the Constitution, statutes, and practice directions together with general principles as guided by case law. He cited the case of Ruangaga Charles Vs Uganda, Crlmlnal appeal number 35 oJ 2014

It was further submitted that the learned trial Judge as well ignored the time spent on remand.

Additionally, Counsel cited Aharikundlrq. Yustlnq o Uganda, SCCA No.27 of 2015 for the proposition that courts should be guided by the principle of consistency while handling cases with similar facts.

Counsel thus prayed that the sentence of life imprisonment be set aside and quashed and replaced with a lesser one of 17 years after deducting time spent on remand.

### Respondent's submission

Counsel for the respondent submitted that while sentencing, the trial judge must consider mitigating and aggravating factors. He cited Kgallmpa Edutord. V Uganda, SCC.tl JVo. IO of 7995. Counsel further cited the case of; Koto KaJubl Godfreg V Uganda, SCCA

No.2O of 2074, where the sentence of life imprisonment on the count of murder was upheld by the Supreme Court.

Counsel argued that there was no lawful justihcation compelling enough for this honorable court to interfere with the sentence that was passed by the learned trial Judge. Counsel prayed that the conviction be upheld, sentence of life imprisonment upheld and the appeal be dismissed.

### Court's consideration.

The last ground of appeal faults the learned trial Judge for passing a manifestly harsh and excessive sentence.

For this Court, as a first appellate court, to interfere with the sentence of a trial Court, it must be shown that any one or more of the factors below exist: the sentence is illega1, the sentence is harsh or manifestly excessive, there has been failure to exercise discretion, there was failure to take into account a material factor and an error in principle was made.

See: Rurcbugande Moses Vs Uganda, Supreme Coutt, Cri,mlnal Appeal No. 25 of 2O14; Kgallmpa Edutqrd Vs Uganda, Supreme Court Crlmlnal Appeal No. 1O of 1995; Kamga Johnson Wantamuno Vs (Iganda, Supreme Couta Crlmlnal Appeal No. 76 of 2OOO; and Klutalabge Bernad Vs Uganda, Supreme Court Crlmlnal Appeal No. 743 of 2OO7.

Further, the court may not interfere with the sentence imposed by a tria-l Court simply because it would have imposed a different sentence

had it been the trial Court. See: Ogclo S/O Outoura Vs Republlc [19s4] 24 EA CA 27O.

The sentencing order of the trial court is as follows;

"The conuicts committed uery graue offences of murder. Theg took the liues of their mother and sister due to greed and desire to haue familg land and property to sell and enjoy the proceeds. Thls is a heinous cime which should be seiouslg punished. The conuicts haue preuious conuictions which show that theg are habitual offenders. Euen the imprisonment theg got seems not to haue reformed them. Giuen the grauitg of the offence, and taking all circumstances and factors in this case they deserue a seuere sentence. Each conuict is sentenced to life imprisonment. For auoidance of doubt "LIFE IMPRISONMENT' means the natural liues of the conuicts in light of the position taken bg the Supreme Court in Tigo Steuen u. Uganda, SC Ciminal Appeal No. o8/ 2009."

From the above excerpts, it appears to us the learned trial Judge did not take into account the mitigating factors into account. This was a material factor that the trial Judge ought to have considered and as such we are of the view that an error in principle occurred while sentencing. We quash and set aside the sentence.

#### Re-sentencinq

Section 11 of the Judicature Act vests this court with the same powers as the trial Court in the following terms:

"11. Court of Appeal to haue pouers of tLrc court of oiginal jurisdiction.

For the purpose of heaing and determining an appeal, the Court of Appeal shall lnue all the powers, authoitg and iurisdiction uested under any uitten law in the court from the exercise of the oiginal jurisdiction of whichthe appeal oiginallg emanated."

In exercise of the above mandate, we shall proceed to sentence the Appellant accordingly.

In mitigation, we note that Appellant 1 is 26 years old. He has two children and wife who have been chased away from the land. He is asthmatic. Appellant 2 is 30 years old and is HIV+ and is on ARVs and has children to look after' He has been on remand for 21 months.

However, the Appellants are not first offenders. They had previously threatened the deceased persons and had been convicted and imprisoned for assaulting one of the deceased persons. Imprisonment does not appear to have reformed them. After their release they continued to threaten and indeed proceeded to murder their mother and sister in brutal fashion. They cut short the lives of the deceased persons.

We agree with the position of the law in the case of Blryomumalsho AlexVs, tlganda, CrlmlnalAppeal No. 464 of 2074 which restated with approval the position in Katureebe Boaz and qnother Vs. lJganda, SCCA lVo. 066 of 2O77 in which it was held that the principle of consistency in sentencing is neither a mitigating factor

nor an aggravating factor. The sentence-imposed lies in the discretion of the court which is in the exercise thereof. The court may consider sentences imposed in other cases of similar nature. We consider the case of Ariho Abel Vs. Uganda, Crlmlnal Appeal No. O24 of 2O75, where this Court upheld a sentence of 30 years'imprisonment for the offence of murder. On the other hand, we a-lso consider the Supreme Court position in the case of Opolot Jrtstlne o,nd. Another Vs. Ugdnda, SCCA JVo. 20, 2074, where the Supreme Court conhrmed a sentence of life imprisonment for the offence of murder. In the case of Kaddu Ko,lule Lautrence Vs. Uganda, SCCA No. 72 of 2O78the sentence of life imprisonment was conhrmed as well by the Supreme Court.

In the circumstances of this case a severe custodial sentence is warranted. We therefore sentence ttrem to life imprisonment, where life imprisonment means spending the rest of their natural lives in prison.

We so order t\ \t Delivered and dated this day of I>.^-C.. 2024.

RICHARD BUTEERA

Deputy Chief Justice

CHRISTOPHER GASHIRABAKE

Justice ofAppeal

l/

OSCAR J

Justice of Ap,P: